In the Matter of JAMES FORWARDING COMPANY, INC.

August 8, 2024

CBCA 8051-RATE

In the Matter of JAMES FORWARDING COMPANY, INC.

Jason Walker, Accountant of James Forwarding Company, Inc., San Antonio, TX,

appearing for Claimant.

George J. Thomas, Jr., Director, Transportation Audits Division, Office of Travel,

Employee Relocation, and Transportation, Federal Acquisition Service, General Services

Administration, Washington, DC, appearing for General Services Administration.

Richard A. Martinelli, Office of Counsel, Naval Supply Systems Command,

Mechanicsburg, PA, counsel for Department of the Navy.

LESTER, Board Judge.

Claimant, James Forwarding Company, Inc. (JFC), has asked the Board to review a

decision of the General Services Administration (GSA) denying as untimely its claim for

payment of $14,595.69 for transportation services. JFC originally billed the Personal

Property Shipping Office (PPSO) within the Department of the Navy (Navy) for those

services in September 2018, soon after they were rendered, but the Navy denied that invoice

on October 2, 2018, as part of a prepayment audit review because JFC’s invoice was not

supported by weight tickets. Although JFC interpreted the Navy’s comment in the denial as

suggesting that JFC could resubmit its payment request with the weight tickets, there is no

evidence in the record that JFC did so until 2023, four-and-a-half years after the payment

denial. In accordance with regulation, the Navy forwarded the renewed payment request to

GSA, which denied the claim as barred by the three-year limitation period set forth in the

Transportation Act of 1940, 31 U.S.C. § 3726(c)(2) (2018).

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As explained below, although the Navy, when denying payment on JFC’s invoice,

failed to provide JFC with notice of its appeal rights (as required by regulation), JFC cannot

establish that it was prejudiced by that lack of notice in the circumstances here. Because the

absence of that notice did not toll the statute of limitations, JFC’s four-and-a-half-year delay

in responding to the Navy’s payment denial renders its claim to the agency untimely.

Background

On May 31, 2018, JFC commenced transporting the household goods (HHG) of an

employee of the Navy as part of the employee’s permanent change of station (PCS) from

Louisiana to Guam. The HHG was delivered to Guam at some point in June or July 2018.

Pursuant to part IV of the Defense Transportation Regulation (DTR), which covers

transportation of personal propery, a transportation service provider (TSP) is required to

provide weight tickets to the agency “within seven Government Business Days (GBD) after

shipment pickup.” DTR pt. IV, app. A-A ¶ B.2.e (available at https://www.ustranscom.mil/

dtr/part-iv/dtr_part_iv_app_A-A.pdf (last visited Aug. 7, 2024)). The TSP is responsible for

entering all accessorial services, weights, and actual pickup and delivery dates. Id.; see id.

¶ B.4.b(2)(b) (“The weight ticket information must be entered into the [payment system] by

the TSP.”). “TSPs are responsible for the resolution of all invoices in ‘Audit Exception’

status in the [applicable third party payment system].” Id. ¶ B.2.e.

On September 26, 2018, JFC submitted an invoice on Standard Form 1113 in the

Defense Personal Property System (DPS)1 seeking payment for its Louisiana-to-Guam

transportation services. That invoice was initially approved within DPS on September 28,

2018. Upon approval, DPS, through an electronic data interchange, sent a “notification of

service completed” to Syncada, an Internet-based transportation payment system that the

Department of Defense utilizes.2 The Syncada system conducts a line-by-line comparison

1

DPS “is the PCS and storage portal for Defense Department . . .

personnel and their families” to use in setting up moves.

https://www.militaryonesource.mil/resources/gov/defense-personal-property-system/ (last

visited Aug. 7, 2024). After providing transportation services, TSPs use the DPS to submit

their invoices to the responsible agencies.

2

“Syncada is a software package” that, “in conjunction with the Department of

Defense (DOD) Global Freight Management (GFM)/Electronic Transportation Acquisition

(ETA) Freight assignment software, . . . provides a virtually paperless transaction

application that processes Commercial Bills of Lading (CBL) electronically.”

https://www.uscg.mil/Portals/0/FINCEN/Documents/SyncadaCBLProcess2021.pdf (last

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of each charge in an invoice. If any discrepancies are identified, the invoice is placed in an

“audit exception” that requires manual intervention by the TSP or the shipping office. In this

case, when JFC’s payment was processed through Syncada, the system identified the absence

of a weight ticket associated with the invoice, resulting in the denial of the invoice on

October 2, 2018.

In its submission to the Board, JFC acknowledges that, on or about October 2, 2018,

a Navy representative “place[d] a note in Syncada” explaining the denial—the note read,

“Additional Comments: Missing weight ticket verification”—but asserts that the

representative “did not place a note in DPS, nor did she provide an email address for us to

send the weight ticket to.” The Syncada denial provided no notice to JFC telling it of any

appeal rights or explaining how an appeal process would work. Nevertheless, it clearly

stated that payment on the invoice was “denied.”

The record before us does not identify exactly when JFC became aware of the denial

in Syncada, but copies of internal company emails show that, by July 12, 2019, JFC’s

accounting manager had transmitted the relevant weight ticket for the HHG shipment to

JFC’s document management clerk, following email communications about the need for the

document management clerk to submit it to the Navy. JFC has informed the Board that, as

a matter of regular business, its employee routinely would have (and, as a result, must have)

submitted the weight ticket to the Navy at that time. JFC indicates, however, that the

document management clerk is no longer with the company and that JFC does not have

access to her former email account. As a result, JFC has been unable to provide the Board

with any evidence to show that the weight ticket was sent to the Navy or GSA at that time.

Neither GSA nor the Navy has any record of having received the weight ticket in 2019.

The earliest evidence of the Government’s receipt of any response by JFC to the

Syncada denial is from January 13, 2023, when JFC electronically added a comment to the

denied Syncada record indicating that the company would send the weight ticket. At some

point before August 22, 2023, JFC submitted the weight ticket and other documentation to

GSA’s Office of Transportation and Property Management (the GSA Transportation Audits

Division) and requested a decision on what it referenced as its claim.3 On January 22, 2024,

visited Aug. 7, 2024). “The various carriers that are registered in Syncada then turn these

CBL[s] into freight invoices.” Id.

3

The record does not contain a copy of JFC’s claim to the GSA Transportation

Audits Division, but it is clear from the record that JFC submitted one sometime in 2023.

JFC originally attempted to file this matter with the Board on August 22, 2023, but, pursuant

to Rule 302(a) (48 CFR 6103.302(a) (2023)), the Clerk of the Board deferred docketing it

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the GSA Transportation Audits Division denied the claim as barred under the three-year time

limitation of section 3726, stating as follows:

As an allowance for transportation furnished the United States Government

under Document Reference Number CNNQ0515267, has been examined and

disallowed for the following reason(s):

Your bill in the amount [of $14,595.69] was received on the date indicated on

the public voucher. In accordance with the provisions of section 332 of the

Transportation Act of 1940, as amended (31 U.S.C[.] 244), every claim

cognizable by the General Services Administration for charges for

transportation within the purview of this section is forever barred unless the

claim is received by the General Services Administration, or its designee (the

agency out of whose activities the claim arose), within 3 years from the date

of

(1)

(2)

(3)

(4)

Accrual of the cause of action thereon, or

Payment of charges for the transportation involved[,] or

Subsequent refund for overpayment of charges, or

Deduction made pursuant to this section, whichever is later.

Since your claim was not received within the prescribed statutory period of

limitations, it cannot be given consideration[.] The claim, together with all

papers transmitted therewith, is returned. . . .

Time Barred Denial

Direct Claim

On March 19, 2024, JFC submitted to the Board its request for review of the GSA

Transportation Audits Division’s denial of the claim. GSA responded on March 28, 2024,

arguing that JFC’s claim was time-barred under 31 U.S.C. § 3726(c)(2)(A), and the Navy

submitted its own response on March 29, 2024, agreeing with GSA’s position. After JFC

submitted a reply, the Board issued an order on May 3, 2024, requesting supplemental

briefing to help it better understand the Syncada invoice submission and denial process and

because JFC did not identify the GSA Transportation Audits Division claim number. The

Clerk referred JFC to the GSA Transportation Audits Division website. In its decision dated

January 22, 2024, the GSA Transportation Audits Division represents that JFC submitted a

claim but does not indicate when JFC submitted it.

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the statutory basis of GSA’s and the Navy’s untimeliness argument. After receiving the

parties’ supplemental briefing, the Board conducted a “virtual” conference on June 4, 2024,

during which the parties further explained their positions.

Discussion

I.

JFC’s Request for Review

Pursuant to 31 U.S.C. § 3726(i)(1), a TSP may ask that the Board review a decision

of the GSA Transportation Audits Division denying a claim for payment.4 JFC has requested

such a review, and it did so within six months after receiving the GSA Transportation Audits

Division’s decision, as required by section 3726(i)(1).

II.

Rules Regarding Timeliness of Transportation Claims

There is no dispute that JFC provided HHG delivery services, that JFC timely

submitted an invoice to the Navy for those services, and that, in October 2018, the Navy

denied payment on that invoice because it was unsupported by weight tickets. When JFC

submitted its claim challenging non-payment in 2023, GSA denied it solely because it was

not timely. Accordingly, the only issue before us is timeliness. “The burden is on the

claimant to present evidence of receipt of a claim in the proper office within the statutory

period of limitations.” Tri-State Motor Transport Co., B-256411, et al., 1995 WL 322417,

at *2 (Comp. Gen. May 30, 1995); see Cinco Star Forwarding, GSBCA 16865-RATE, 2006

WL 2831129 (Sept. 29, 2006); Rule 301(b) (48 CFR 6103.301(b) (2023)).

Timeliness of transportation claims is governed by section 3726. Inter-Coastal

Xpress, Inc. v. United States, 296 F.3d 1357, 1367-69 (Fed. Cir. 2002). Section 3726

authorizes GSA to “adjudicate transportation claims which cannot be resolved by the agency

procuring the transportation services, or the carrier or freight-forwarder presenting the bill.”

31 U.S.C. § 3726(c)(1). The statute provides that GSA can allow a claim only if the GSA

Transportation Audits Division (or, pursuant to the regulation implementing this section, the

agency that provided the services) receives it “not later than 3 years” from the latest of the

following four dates:

4

The statute provides for review by the Administrator of General Services of the

GSA Transportation Audits Division’s decision, but the Administrator has redelegated that

function to the Board. See 31 U.S.C. § 3726(g) (authorizing such delegation); 41 CFR

102-118.490(b); 48 CFR 6103.301(a); GSA Order ADM 5440.1 ch. 19 (Apr. 5, 2022) at 1.c.

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(A)

(B)

(C)

(D)

6

The date of accrual of the claim.

The date payment for the transportation is made.

The date a refund for an overpayment for the transportation is made.

The date a deduction under subsection (d) of this section is made.

Id. § 3726(c)(2); see 41 CFR 102-118.470 (“[A]n administrative claim must be received by

the GSA Transportation Audits Division or its designee (the agency where the claim arose)

within 3 years” of the dates identified in section 3726(c)(2)). By regulation, a “claim”

involves a request for payment of (1) “[a]mounts owed but not included in the original

billing”; (2) “[a]mounts deducted or set off by an agency that are disputed by the TSP”;

(3) “[r]equests by a TSP for amounts previously refunded in error by that TSP”; and/or

(4) “[u]npaid original bills requiring direct settlement by GSA, including those subject to

doubt about the suitability of payment.” 41 CFR 102-118.450.5

Most of the timeliness issues previously considered by the Board and its predecessors

(the General Services Board of Contract Appeals (GSBCA) and the General Accounting

Office (now the Government Accountability Office (GAO))) in deciding transportation

claims were brought by TSPs that had failed to submit any invoice for payment within three

years after completing their delivery services. Typically, “[a] claim for freight charges

accrues when the shipment is delivered.” Peralta Shipping Corp., B-197661, 1980 WL

16562, at *2 (Comp. Gen. May 22, 1980) (citing Baggett Transportation Co. v. United

States, 319 F.2d 864, 868 (Ct. Cl. 1963)); see Southern Railway System, 51 Comp. Gen. 201,

203 (1971) (“A cause of action for transportation charges against the United States accrues

upon the completion of the transportation service, that is, the date of delivery to the

consignee, and the statute of limitations begins to run from that date.”). Accordingly, it has

routinely been held that, when a TSP fails to submit its initial invoice for payment to the

appropriate government office within three years after completing delivery, its claim for

5

The regulations covering transportation claims contain a second definition of

the term “claim,” defining it as “[a]ny demand by the TSP for amounts not included in the

original bill that the TSP believes an agency owes them.” 41 CFR 102-118.35(2). Although,

on its face, amounts that actually were included in the original bill but not paid would seem

to fall outside of this definition, it goes on to provide that “[t]his includes amounts deducted

or offset by an agency; amounts previously refunded by the TSP, which is believed to be

owed; and any subsequent bills from the TSP resulting from a transaction that was

prepayment or postpayment audited by the GSA Transportation Audits Division.” Id.

Because section 102-118.450 plainly allows a TSP to submit a claim for payment of a

disputed unpaid original bill, we need not attempt to decipher how this second regulatory

definition applies to the situation before us.

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payment is time-barred. See, e.g., Cinco Star Forwarding, 2006 WL 2831129; Apollo Van

Lines, Inc., GSBCA 16074-RATE, 03-2 BCA ¶ 32,330, at 159,952; North American Van

Lines, Inc., GSBCA 15941-RATE, 03-1 BCA ¶ 32,221, at 159,347-48; American Stitching

& Box, Inc., GSBCA 14615-RATE, 99-1 BCA ¶ 30,369, at 150,141; Peralta Shipping, 1980

WL 16562, at *2; Sea-Land Service, Inc., B-178546, 1973 WL 7774, at *2 (Comp. Gen.

June 14, 1973); Southern Railway, 51 Comp. Gen. at 203. Where a claim is untimely

submitted, “neither the GSA nor the Board has the authority to allow payment.” American

Stitching & Box, Inc., 99-1 BCA at 150,141. It matters not that there is “no question that the

[agency] received the moving services.” Id. at 150,140.

The situation before us is different. Here, JFC timely submitted its invoice for

payment in September 2018, less than three months after its delivery of the HHG at issue.

Accordingly, JFC met the initial time limit for submitting its request for payment.

Subsequently, however, the Navy denied payment through Syncada as part of a prepayment

audit required both by statute, 31 U.S.C. § 3726(a)(1), and by regulation, 41 CFR part

102-188.

In a prepayment audit, an agency conducts a thorough review “of transportation

billing documents before payment [to the TSP] to determine their validity, propriety, and

conformity of rates with tariffs, quotations, agreements, contracts, or tenders.” 41 CFR

102-118.35. If, as a result of the audit, the agency makes any adjustment to the TSP bill, the

“agency must notify the TSP of [the] adjustment to the TSP bill either electronically or in

writing within seven calendar days of the agency receipt of the bill.” Id. 102-118.290(a).

By regulation, the notice must include the following information: “(1) TSP’s bill number;

(2) Agency name; (3) TSP’s [Taxpayer Identification Number]; (4) [TSP’s Standard Carrier

Alpha Code (SCAC)]; (5) [Document Reference Number (DRN) from the bill of lading];

(6) Date invoice submitted; (7) Amount billed; (8) Date invoice was approved for payment;

(9) Date and amount agency paid; (10) Payment location number and agency organization

name; (11) Payment voucher number; (12) Complete contract, tender or tariff authority,

including item or section number; (13) Reason for the adjustment; and (14) Complete

information on the agency appeal process.” Id. 102-118.290(b). Once the TSP receives the

notice of adjustment, it “must submit claims to the agency within three years under the

guidelines established in subpart F, Claims and Appeals Procedures, [41 CFR 102-118.450

to .675].” Id. 102-118.290(c).

GSA and the Navy tell us that, although JFC’s timely submission of its original

invoice satisfied the original claim accrual deadline, the Syncada payment denial in October

2018 started a new accrual deadline that JFC had three years to satisfy. Because JFC did not

submit a claim to either the Navy or GSA challenging the Syncada payment denial within

that three-year period, the agencies argue, JFC’s claim here is time-barred.

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III.

8

Timeliness of JFC’s Claim

A.

JFC’s Alleged Timely Invoice Resubmission

As an initial matter, JFC suggests that it is not necessary to decide whether a new

three-year limitations period began to run in October 2018 because, even if it did, JFC should

be presumed to have met that deadline. JFC has produced an internal company email chain

from July 2019 in which its accounting manager and its document management clerk were

communicating about the need to submit the weight tickets to the Navy. JFC asserts that it

would have been illogical for its clerk not to have resubmitted the invoice with weight tickets

at that time. Yet, there is no actual evidence in the record that anyone from JFC ever

contacted either the Navy or GSA at any time before January 2023 about the denied invoice,

much less actually resubmitted it with weight tickets. JFC’s factual assertion is supported

only by speculation and supposition. The GSBCA considered a similar situation in Apollo

Van Lines, Inc., 03-2 BCA ¶ 32,330, where a TSP, while asserting that it had timely

submitted invoices to the agency, was unable to produce any contemporaneous evidence of

submission or receipt. See id. at 159,952. The board recognized that it is the TSP’s burden

to establish that GSA or the relevant agency received a claim within the period set out in the

statute and that the absence of any definitive evidence showing timely submission precluded

the TSP from meeting that burden. Id. Like the claimant in Apollo Van Lines, JFC has

produced no evidence that any of its employees actually resubmitted the invoice in July 2019

with weight tickets. JFC’s speculation that submission must have happened is insufficient

to meet its burden.

B.

The Effect of the Navy’s Failure to Provide Notice of Appeal Rights

With regard to the agencies’ argument that the Syncada payment denial started a new

three-year time limit for challenging the denial, we would, assuming that the agency’s notice

of the payment denial satisfied all regulatory requirements, agree. The regulatory provision

at 41 CFR 102-118.290(c) makes clear that, after receiving a notice that the agency will pay

only a reduced amount from that which was billed or will pay no money at all, the TSP has

three years from the date of receipt to “submit claims to the agency . . . under the guidelines

established in subpart F” of 41 CFR part 102-118. Under subpart F, a TSP may submit a

“claim” challenging “[u]npaid original bills requiring direct settlement by GSA, including

those subject to doubt about the suitability of payment.” 41 CFR 102-118.450. If the agency

questions whether an invoice should be paid, it is “subject to doubt,” and the agency must

obtain GSA’s approval before making payment. Rosemarie E. Naguski, B-212335, 1984 WL

43950, at *3 (Comp. Gen. Feb. 28, 1984). In line with 41 CFR 102-118.470, claims “must

be received by the GSA Transportation Audits Division or its designee (the agency where the

claim arose) within 3 years” of the date of accrual. We agree with GSA and the Navy that

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a TSP has three years from the date that it receives proper notice of the payment denial to

submit a claim challenging it.

In this case, however, there is a problem with the notice that JFC received: it did not

satisfy all of the regulatory requirements for a denial. By regulation, each agency’s

prepayment audit program is required to include “[a]n appeals process . . . for a TSP to

appeal any reduction in the amount billed.” 41 CFR 102-118.285(k); see id. 102-118.295

(similarly requiring agency establishment of appeals process). Each agency is encouraged

to “establish an electronic appeal process that will direct TSP-filed appeals to an agency

official for determination of the claim,” and the “agency must complete the review of the

appeal and inform the TSP of the agency determination within 30 calendar days of the receipt

of the appeal, either electronically or in writing.” Id. 102-118.295. If the TSP elects to

submit an appeal of the adjustment to the agency and the agency is subsequently “unable to

resolve the disputed amount with the TSP, [the] agency must submit, within 30 calendar

days, all relevant transportation documentation associated with the dispute, including a

complete billing history and the appropriation or fund charged, to GSA Transportation Audits

Division by email.” Id. 102-118.300.

Importantly for purposes of the matter before us, the regulations governing

prepayment audit reviews require that, in the notice informing the TSP of a reduction in the

invoiced payment amount, the agency must include (among other things) “[c]omplete

information on the agency appeal process.” 41 CFR 102-118.290(b)(14). GSA added that

requirement to the Federal Management Regulations (FMR) in 2016 through notice-andcomment rulemaking. 81 Fed. Reg. 65,296, 65,302 (Sept. 22, 2016). GSA’s stated reasons

for revisions to the FMR included a need to implement the Travel and Transportation Reform

Act of 1998, Pub. L. 105-264, which “established agency statutory requirements for

prepayment audits of Federal agency and [Department of Defense (DoD)] transportation

expenses,” and to “[s]trengthen[] agency requirements and responsibilities for transportation

prepayment audits.” 81 Fed. Reg. at 65,296, 65,298.

The Syncada notice denying payment of JFC’s invoice, which serves as a “notice of

adjustment” of the invoice down to zero, did not provide JFC with any notice of its appeal

rights or information about how or when to appeal. Nor did the Navy provide any alternative

notice of appeal rights outside of the Syncada denial.

In its original briefing to the Board, GSA did not mention this regulatory requirement.

After the Board requested supplemental briefing following its review of GSA’s regulations,

GSA explained that, unlike the the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109

(2018), which requires that contracting officers include notices of appeal rights in final

decisions on government contractor claims, “neither the Transportation Act (31 U.S.C.

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§ 3726) nor 49 U.S.C. § 14705 require carriers to be notified explicitly of their appeal

rights.” GSA’s Supplemental Brief at 2. While it may be true that there is no statutory

notice requirement in the transportation statutes, GSA’s regulations require that agencies

provide such notice, and “[i]t is well established that valid regulations have the force and

effect of laws.” Shiflett v. United States Postal Service, 839 F.2d 669, 673 (Fed. Cir. 1988).

In other contexts, the Court of Appeals for the Federal Circuit has routinely enforced

regulations mandating notifications of appeal rights, even where the notice requirements are

not set forth in an authorizing statute, and found that the agency’s failure to provide a

required notice can delay the accrual of a claim. See, e.g., Ladrido v. Merit Systems

Protection Board, 248 F. App’x 184, 186 (Fed. Cir. 2007) (“An agency’s failure to provide

notice of appeal rights required by applicable regulations if serious enough can, by itself,

constitute good cause for untimely filing of an appeal.”); Toyama v. Merit Systems Protection

Board, 481 F.3d 1361, 1366-67 (Fed. Cir. 2007) (Under Equal Employment Opportunity

Commission regulations relating to discrimination cases, agency’s failure to provide “the

notice of appeal rights required by the regulations . . . constitutes good cause for a late

filing.”); Shiflett, 839 F.2d at 674 (In the Merit Systems Protection Board context, “the

failure of the respondent to give notice to petitioner of her appeal rights,” as required by

regulation, “constituted good cause for the late filing by petitioner of her appeal.”).

GSA represents that the absence of an appeal rights notification to JFC is not unusual

because TSPs receiving “[i]ndividual denials” of their invoices for transportation services

“are not generally provided notice of the appeals process” by the agencies that pay (or decline

to pay) their invoices. GSA’s Supplemental Brief at 2-3. Yet, “[a]n agency must follow all

applicable procedures.” Shiflett, 839 F.2d at 674. Even if agencies routinely ignore the

requirements of 41 CFR 102-118.290(b), they do so at their own risk. Requirements that

agencies include notices of appeal rights in decisions that they issue are for the benefit and

protection of the recipients. See, e.g., Decker & Co. v. West, 76 F.3d 1573, 1579 (Fed. Cir.

1996); Steith Construction, Inc., NASA BCA 44-0291, 91-3 BCA ¶ 24,140, at 120,795;

M.G.C. Co., DOT CAB 1553, 85-1 BCA ¶ 17,777, at 88,782 (1984). At least in the context

of the CDA, which contains an appeal rights notification obligation that seems comparable

to the one in 41 CFR 102-118.290(b)(14), an agency “decision that does not give the

[recipient] adequate notice of its appeal rights is defective” and can preclude the

commencement of the limitations period. Pathman Construction Co. v. United States, 817

F.2d 1573, 1578 (Fed. Cir. 1987).

C.

Lack of Prejudice to JFC

That being said, “[t]he failure to include a notice of appeal rights does not prevent the

start of the appeal period unless the [recipient] demonstrates that it was actually prejudiced

by the lack of notice.” Parsons Government Services, Inc., ASBCA 62113, 20-1 BCA

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¶ 37,586, at 182,509 (citing Decker & Co., 76 F.3d at 1580); see Wise Developments, LLC

v. General Services Administration, CBCA 6659, 21-1 BCA ¶ 37,774, at 183,350 (“[T]he

contractor must show prejudice from, or detrimental reliance upon, the absence of a proper

appeal rights notice.”). Prejudice requires injury or damage, “with at least a showing

of . . . some reasonable possibility that the outcome would have been different had [the

contractor] received notice.” Wise Developments, 21-1 BCA at 183,351 (quoting Old

Republic Insurance Co. v. Underwriters Safety & Claims, Inc., 306 F. App’x 250, 255

(6th Cir. 2009)). “We will not presume ‘prejudice or [detrimental] reliance by virtue of the

late filing alone.’” Id. (quoting Shafi Nasimi Construction & Logistics Co., ASBCA 59916,

16-1 BCA ¶ 36,215).

GSA asserts that JFC could not have been adversely affected by the lack of notice

because “any prudent person would [have] . . . contact[ed] the PPSO” after getting the

Syncada denial, which JFC did not, and because “[t]he appeal process is clearly identified

in 41 CFR § 102-118.” GSA’s Supplemental Brief at 3. “Yet, were we to find that the

Government can escape a finding of prejudice every time it fails to include a notification of

appeal rights in a final decision, simply because [a statute or regulation] identifies the

contractor’s right, it would essentially eradicate the [agency’s] obligation under [the

regulation] ever to provide such notice.” Wise Developments, 21-1 BCA at 183,350. As

mentioned previously, one of the reasons for the 2016 amendment adding a requirement for

a notice of appeal rights was to “[s]trengthen[] agency . . . responsibilities for transportation

prepayment audits.” 81 Fed. Reg. at 65298. If we were to “adopt a standard of constructive

notice that completely absolves the [agency] from ever having to meet [its] notice

obligations,” Wise Developments, 21-1 BCA at 183,351, the 2016 regulatory amendments

adding a requirement for notice would have no purpose. Agencies must be held accountable

for failing to meet regulatory obligations.

GSA also references its Transportation Audits Management System (TAMS), which

became effective on September 28, 2020, through which federal agencies and TSPs now

manage their accounts, as providing information about appeals. GSA asserts that JFC created

an account in the system on April 17, 2020, and that the “robust user guide” available

through that site “provides step-by-step instructions . . . on submitting a claim to GSA,”

meaning that JFC had information about its appeal rights no later than that date. GSA’s

Supplemental Brief at 3. It is true that, when the agency fails to include a required notice of

appeal rights in a decision, “a dismissal based on untimeliness may [still] be proper if the

[recipient] fails to act promptly and within the allowable time limits after [it] becomes aware

of those rights.” Ratcliff v. Merit Systems Protection Board, 55 F. App’x 942, 943 (Fed. Cir.

2003). Here, though, the literature to which GSA has pointed describes the TAMS as an

accounting system “that identifies and recovers [TSP] overcharges and other debts relating

to transportation bills [previously] paid by federal agencies.” TAMS External User Training

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Guide (Apr. 3, 2024) ¶ 1.1 at 4-5 (available at https://www.tams.gsa.gov/login (last visited

Aug. 7, 2024)). In this case, the agency never paid JFS anything, so there is no overpayment

for the agency to collect, making it appear that TAMS does not apply to the situation before

us. To the extent that the referenced literature makes any reference to prepayment audits, it

says nothing about appeal processes or a three-year time limit for submitting an appeal. The

TAMS literature does not assist GSA.

Despite our rejection of GSA’s arguments regarding an alleged lack of prejudice, a

review of the record here makes clear that it was not the absence of a notice of appeal rights

that stopped JFC from timely submitting an appeal. As JFC acknowledges in its submissions,

the invoice at issue simply got lost in JFC’s accounting records. Outside of the July 2019

time frame when two JFC employees discussed the need to submit the weight tickets, it

appears that JFC simply did not maintain records in which it could easily see that it had not

been paid for this invoice before its current accountant discovered it in January 2023. As

previously noted, to establish prejudice, JFC must show “some reasonable possibility that the

outcome would have been different had it received notice.” Wise Developments, 21-1 BCA

at 183,351. The record here demonstrates that it was not the lack of an appeal rights notice

that stopped JFC from timely submitting a claim on its invoice payment denial but instead

faulty recordkeeping and a failure to keep track of unpaid bills. Even had the Navy provided

an appeal rights notice in October 2018, JFC still would not have recognized the invoice

nonpayment within the three-year limitations period. It still would have lost this invoice in

its accounting system, and it still would not have rediscovered the invoice until four-and-ahalf years after the Syncada denial. Because we cannot find that JFC would timely have

submitted its challenge to the invoice denial had the Navy provided it with a notice of appeal

rights, we have no basis for finding prejudice to JFC from its absence. Accordingly, JFC

cannot overcome the untimeliness of its claim.

With regard to JFC’s argument that, had the Navy timely provided it with notice of

its appeal rights, it would have known where to send the missing weight tickets and could

have taken immediate action to deal with it, a notice of appeal rights would not have

provided that information. The missing notice would only have explained the agency’s

appeal process for challenging denied invoices, which GSA and the Navy tell us involved

going to the Navy’s PPSO through the same system that JFC eventually used to resubmit its

invoice in 2023. The rules regarding the requirements for submission of weight tickets were

contained in the DTR, with which JFC, as a TSP, was responsible for complying. See DTR

pt. IV, app. A-A ¶¶ B.2.e, B.4.b(2)(b). The Navy was not required in an appeal rights notice

to explain to JFC where to find those rules or how to fix defects in its invoice. Because an

appeal rights notice would not have provided JFC with the information that it suggests would

have encouraged it quickly to submit the missing weight tickets, this argument does not

provide a basis for finding prejudice.

CBCA 8051-RATE

D.

13

JFC’s Request Based on Equity

JFC also asks that we forgive its failure timely to submit its claim, suggests that any

failure to submit was not intentional, and asserts that the loss of any payment for the work

that it indisputably performed would be unfair to JFC and a windfall to the agency. We lack

authority to excuse untimeliness based upon equitable considerations. See Arpin

International Group, GSBCA 16471-RATE, 04-2 BCA ¶ 32,795, at 162,211 (“We have no

authority to consider matters relating to payment for transportation services which were not

previously presented in a timely fashion to GSA in the form of claims.”).

Decision

For the foregoing reasons, JFC’s claim is denied.

Harold D. Lester, Jr.

HAROLD D. LESTER, JR.

Board Judge